Tort Principles Research Articles

The Liability of Financial Supervisory AuthoritiesI am grateful to Robert Dijkstra for his helpful comments on an earlier draft. The usual caveat applies.

Abstract In the wake of the global financial crisis, this article considers the tort liability of financial supervisory authorities to depositors and other investors following the failure of a bank or other financial institution. The analysis is comparative, with the primary focus being on the member states of the European Union. Consideration is given to the five liability categories or standards which are employed by EU member states in such cases. These are (1) a public law illegality standard; (2) a standard of ordinary fault/negligence; (3) a standard of gross fault/negligence; (4) a requirement of bad faith; and (5) complete immunity from liability. It is also shown that on the application of general tort principles claims by depositors against financial supervisors face a range of obstacles, including difficulties in establishing fault and causation, and conceptual difficulties based on the nature of the damage (the pure economic loss issue), liability for omissions and for the deliberate acts of third parties, liability for the exercise of judicial or ‘quasi-judicial’ functions, and the ‘protective purpose of the norm’ principle. Finally, consideration is given to alternative means of redress which may be available to depositors in such cases.

Economic analysis of the principles of liability in tort in the backdrop of liability for compensation for damage occurring as a result of the activities of one entity to the goods of another entity

The article addresses basic issues associated with the economic analysis of liability in tort principles. The deliberations focus on an attempt to define the economic and social consequences of introducing various combinations of principles of tortious liability for damage suffered as a result of the activities of one entity borne in the goods of another. Lack of liability situations are treated in some detail as well as liability based on the principle of risk and the principle of fault. The analyses were conducted based on unilateral and bilateral models. Factors coming into play in determining the economically effective level of carefulness in actions are discussed. A series of other factors of significant relevance for the choice of an optimal principle of liability from the economic point of view are also highlighted. In this context the role of the level of activity of entities, availability of insurance policies and costs associated with pursuing compensation claims are discussed. The deliberations are concluded with a summary, which also entails a critical look at the method of economic analysis of law.

Tort Law Culture in the United Kingdom: Image and Reality in Personal Injury Compensation

Although culture is very difficult to define, we can say that tort rules, procedures and institutions both reflect and help determine the broad culture of the society of which they are a part. Concepts such as wrongdoing, causation, compensation and justice depend upon a cluster of popular beliefs and attitudes which are in turn moulded by the legal system. One aim of this article is to further illustrate how the tort system reflects particular cultural institutions and practices. But a more important theme is in conflict with this aim: we point to a dissonance between cultural attitudes and the reality of the tort system in practice. That is, we examine perceptions of tort derived from commonly held views about how the system of justice ought to operate and we contrast how tort, in practice, often does not correspond to these views.This article is written in two parts. In the first part we consider images of tort deriving from traditional portrayals of justice. We set out seven commonly held views about the operation of the personal injury litigation system and then we contrast what actually happens in practice. We note the rhetoric and the cultural learning derived from long-held views of how the legal system is supposed to operate and we then compare the reality. We start by reflecting upon the scope of tort principles. Next we consider who brings and defends personal injury cases and what role is played by courts and judges in their resolution. We then consider how the key principle of fault is interpreted in practice and how the institution of insurance and its operation affects these traditional perceptions of how justice is delivered. Finally, we look at the reasons why damages are awarded and what amounts are paid. Overall, we set out the following seven commonly held cultural views of tort and then, by examining the actual practice of personal injury, we undermine them:1. Tort law is universal and applies to all accidents and injuries2. Tort claims for personal injury are often brought and defended by individuals3. Tort claims are determined in court by judges aided by lawyers and juries4. Tort liability is largely dependent upon proof of fault and findings of law5. Tort cases reflect the justice requirement of due process and fairness6. Tort focuses upon compensating financial loss and serious injuries7. Tort awards full compensation for losses suffered In the second part of this article we look at another set of images which contrast with those set out in the first part. These images portray the tort system in a very critical way depicting it as a burden that undermines rather than underpins society. It is widely perceived that tort has encouraged a damaging compensation culture. Our propensity to claim is said to have increased to such an extent that we can no longer accept personal responsibility for our misfortunes. The system is thought to be awash with unmeritorious claims which have been prompted by an ambulance-chasing entourage offering to work on a ‘no-win no-fee’ basis. Exaggeration and fraud are to the fore and non-existent or unmeritorious injuries are compensated. As in the first part of the article, although with less force, we then show how these images have become distorted from reality. In particular, the majority of injured people still do not go on to claim compensation despite being encouraged to do so through widespread ‘no-win no-fee’ advertising. The exception arises in the context of road traffic accidents, where there is a strong culture of claiming. The significant increase in the number of personal injury claims over the last forty years is largely attributable to an increase of such claims. Whilst the extent of spurious and fraudulent claiming has generally been exaggerated, again, in the context of road traffic accidents complaints have more foundation. We examine why such a strong culture of claiming has developed in the context of road traffic accidents as compared with other types of claim. In conclusion, having shown how traditional and modern portrayals of tort differ from the reality, we show how tort in practice is heavily influenced by institutional arrangements.

Tort Liability Law of the People's Republic of China

The book provides a comprehensive analysis of the Tort Liability Law of the People's Republic of China (GdH). For many years, Chinese Tort Law has been a controversial issue among Chinese legal scholars. This book examines the status quo of the discourse in the literature and provides specific illustrations of how general Tort principles such as causation, negligence and damages are applied in Chinese courts. Since the availability of Chinese case law is limited and many opinions lack reasoning, the book analyses representative cases to provide a basic understanding of how Tort Law functions within the Chinese legal system.This book has seven chapters. First (chapter A), this book presents an overview of the GdH in context of the civil law reform of China and summarizes the most important disputes within the legislative procedure. Second (chapter B), the book addresses the conflicts between the GdH and the General Principles of Civil Law in the PR China and special tort laws. Third (chapter C), the book examines in detail the scope of GdH’s protection. In this chapter, 'General Principles' such as causation, justification, intention/negligence and damages are discussed. In addition, this chapter presents the concept of the joint and several liability factors that reduce and eliminate liability and general injunctive relief. To conclude the general part of the book, questions concerning the burden of proof and the limitation of liability are discussed due to their importance in court proceedings. To follow the general part of the book, chapter D introduces the general liability clauses. Chapter E analyses the liability of special legal persons and individuals. Part E of this book provides an overview concerning product liability, liability for traffic accidents, liability for medical malpractice, environmental liability, liability for high risks, liability for animals and liability for special items. The book concludes with a discussion of the overarching themes of Chinese Tort Law that emerge from the above analysis.

Misfeasance as an Organizing Normative Idea in Private Law

The familiar principle that there is no liability for nonfeasance but only for misfeasance is often presented as reflecting a merely factual difference between acts and omissions and is discussed as a discrete issue in negligence alongside and after the treatment of the general tort principles. In striking contrast, Francis Bohlen took this distinction to be normative, not factual, and wrote that none is more deeply rooted in and more fundamental to the common law. This Article investigates whether his contention is sound and, if so, how it might be accounted for. Its main thesis is that, properly understood, the misfeasance requirement is a central organizing normative idea in private law, providing a unifying moral framework for specifying the varieties of private law relations. Part One fixes the meaning and the role of misfeasance through a discussion of a variety of situations in which the law denies liability for even foreseeable loss. We see that the misfeasance requirement makes a certain kind of protected interest, namely, an exclusive right, the necessary condition of liability in private law. But the character of an exclusive right requires explanation and the fact that it is the only relevant conception of protected interest needs to be justified from a moral point of view. Part Two undertakes an analysis of exclusive rights and shows how it is reflected in the main forms of substantive private law rights. Parts Three and Four take up the further question of the moral acceptability of the misfeasance requirement as part of a liberal theory of justice.

Extreme American Neighborhood Law

This Article explores narratives of extreme American neighbors acting badly - to other neighbors, to the police and to themselves. Starting with a philosophical-religious-psychological assessment of the neighbor as tragic construct, the Article quantifies and analyzes American neighbor jurisprudence in the opening years of the twenty-first century. The cautionary tales reveal ongoing, serious, and destructive meltdowns involving neighbors throughout the United States. The Article notes that while state and federal judges have done a fair job in resolving these vexing disputes under traditional criminal law, tort and property principles, it is high time for some new approaches. In formulating an epistemic theory of extreme neighborhood conflict, the Article closes with an overarching gestalt, suggests a mapping of American neighborhood law, and concludes with a few ideas for potential pragmatic policy responses.

Time to Abolish the Rule in Searle v Wallbank for Negligence and Nuisance Claims

<p>In this article, the author suggests that the old common law rule denying that an owner of property owes a duty of care in respect of escaping animals should be abolished. After discussing the original English case in which this finding was made and the reasons for its creation, the author questions whether the principle remains coherent with other legal principles in tort, including the massive development of the common law of tort in recent years. He concludes that the rule is an anachronism and should be abandoned. If the reasoning for the decision were ever applicable to Australian conditions, it is not applicable any longer. The rule reflects an<br />exception to a general principle of now universal acceptance, without justification. The Australian High Court should take the opportunity to abandon the rule, in favour of the general application of tort principles to resolve such disputes. The courts are an appropriate law reform body in this context.</p>

An American View: Federalism and Health Law

This essay is adapted from a talk presented at the symposium sponsored by the Institut Droit et Sante in Paris, celebrating the 50th anniversary of the Code de Sante Publique, the French national health law. The essay outlines differences in how the French and American legal systems approach regulation of health care. The starting point for analysis is the stark difference between the strong centralization of French national law and the federalist diffusion of legal authority in the United States. I argue that, despite the power of federalism, American health law is becoming more centralized through the operation of three forces: the convergence of state common law tort principles; the impact of federal funding programs, which indirectly regulate by the criteria they set for various actors; and the particularly strong role in health care of private sector governance organizations, such as JCAHO, which are also national in scope. The increasing development of a national market for various aspects of health care delivery will continue to create pressure for adoption of national laws.

Legal Realism in Action: Indirect Copyright Liability's Continuing Tort Framework and Sony's De Facto Demise

The Supreme Court's indirect copyright liability standard, derived in Sony Corporation of America v. Universal City Studios from patent law and reasserted in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., is widely seen as creating a safe harbor for distributors of dual use technologies. Yet, when one looks to cases decided since Sony, legislative enactments, and the decisions of technology companies in the marketplace, a very different reality emerges. This article explores and explains the broad gulf between the idealized (and idolized) Sony safe harbor and the practical reality. It shows that the law in many respects reflects the tort principles that undergird copyright liability more generally.

Distributed Denial of Service: Law, Technology & Policy

A Distributed Denial of Service (DDoS) attack aims to deprive legitimate users of a resource or service provided by a system, by overloading the system with a flood of data packets, thus preventing it from processing legitimate requests. This article analyzes the doctrines governing the allocation of liability among key players in a DDoS attack. The doctrines are well established and based on common law tort principles and policy considerations. The main contribution of the article is the adaptation of these principles to the novel technological environment in which DDoS attacks occur. The analysis shows that detailed understanding of the technologies and analysis of their role in DDoS attacks are essential to effective judicial decisionmaking.

Employers’ Liability for Bullying and Harassment

Abstract: This article examines the application of tort principles to the question of an employer?s liability for the psychological effects of bullying and harassment in the workplace in Ireland, comparing the position in the UK. It notes the difference in approach taken in these countries to the duty to avoid negligently inflicted psychiatric harm. It then goes on to examine the limited jurisprudence on intentionally inflicted emotional distress, looking briefly at US jurisprudence in respect of potential development of the law in Ireland and the UK. Finally it examines vicarious liability, including recent Canadian developments, that are proving to be instructive.

AN ECONOMIC ANALYSIS OF A HYBRID LIABILITY RULE

This article considers a legal setting with a tort liability rule that includes both a care‐based component (such as negligence) and a non–care‐based component (such as no liability). Children trespassers are sometimes protected by a doctrine known as attractive nuisance. Attractive nuisance acts as a hybrid liability rule in its application—it applies the negligence rule to accidents involving some types of children, and the no‐liability rule to accidents involving other types of children. A standard economic model of torts is applied to a trespass setting, and the potential efficiency of a hybrid liability rule is examined.

A Pragmatic Approach to Improving Tort Law

This paper argues that there has been an unfortunate lack of connection between the various forms of tort theory and ongoing efforts to improve or reform tort law. The reason for this, the paper suggests, is that, for the past twenty years, tort theory has focused on abstract normative theories such as corrctive justice and economic efficiency and has placed little emphasis on the real world operation of the tort system. Similarly, recent efforts by the ALI to restate tort principles have concentrated upon the felicities of linguistic formulation rather than on the realities of the system. As an alternative to these approaches, the paper explores a more pragmatic approach that would focus less on the substance of tort doctrine and more on its procedural operation. This makes sense, I argue, because substantive tort doctrine generally consists of the application of general normative terms whose chief function is to structure jury deliberation of the underlying normative issues. For better or worse, it is the jury rather than tort doctrine that defines the law of torts. Tort is one way that society deals with the unexpected and sometimes tragic course of human events and any attempt to improve tort should be judged in terms of improving its efficancy in performing this function.

At Law: Job in Court

While the bioethics disputes that reach the courts frequently raise issues that are novel and perplexing, the problems are seldom truly philosophical. One exception are the so-called cases brought against health care professionals by children whose parents were misinformed about the children's medical problems at a time when their conception or could have been prevented. From Gleitman v. Cosgrove, the first case thirty-two years ago, the standing of plaintiffs to sue and the compensability of their injuries have been framed--and rejected--on what some judges have termed grounds. First, the courts reasoned, plaintiffs whose case amounts to saying they should never have been born lack standing to sue because they needed to be born in order to be able to bring their case: their claim is a contradiction in terms. The second barrier, as the New Jersey Supreme Court put it in that first case, is the impossibility of calculating damages: that jurors would be unable to compare a child's impaired existence with nonexistence, and more basically, that existence--no matter how burdened--is always preferable to nonexistence[l] Not for the courts is Job's curse, Let the day perish wherein I was born, nor his plaintive lamentation, Why died I not from the womb? Nonetheless, not long ago, it seemed as though the courts would slowly come to allow wrongful life claims by analogy to related cases. Several states, including New Jersey, ruled in favor of suits against physicians brought by children whose parents were denied information relevant to reproductive decisions. As the range and frequency of prenatal--and even preconceptual--medical interventions increase, more claims can be expected in which a negligent act was the direct cause ora child's injuries. In time, the application of standard tort principles in such cases would extend to the similar sorts of injuries that arise when a physician's negligent misstatement of a risk prevents parents from choosing to avoid or terminate a pregnancy. Second, the growing number of claims for of life, brought by patients who receive treatment that they (or surrogates speaking on their behalf) had rejected and who then survived in a painful and undignified state, seemed likely to receive favorable treatment by the courts because the deprivation of choice seems so egregious. Again, the similarity of these claims to so-called wrongful life cases would eventuate in judges coming to accept the latter cases as stating a cause of action for which relief may be granted when supported by appropriate facts. Yet despite a recent multimillion dollar judgment in New Jersey, current suits in a number of states are pointing in the opposite direction. Not only does remain a label applied to claims for which the law offers no redress, but some states have recently reduced parents' ability to bring so-called birth actions to recover the costs of raising a handicapped child who would not have been born but for the negligence of a physician or other provider. Further, the metaphysical objections to plaintiffs' standing to sue and incalculable damages that originated in wrongful life decisions have been transferred to the growing number of extension suits brought by patients kept alive by unconsented-to life-sustaining treatment. These cases expose the profound ethical tension between respecting patients' rights to control their health care (including the constitutionally guaranteed rights to abortion and to limit life-prolonging treatment) and preserving the rights and dignity of disabled persons against the denigration that some believe is implied by awarding damages here. The decisions also serve as a lamentable reminder of the wide gap between the high-flown rhetoric about patients' fundamental right to make medical decisions and judges' unwillingness to award damages when autonomy has been breached. …

Restoring the Boundary: Tort Law and The Right to Contract

Today courts regularly resolve disputes by applying tort principles when they should apply the law of contracts. When parties have an opportunity to negotiate the terms of their relationship, the resultant contracts ought to be enforced. Tort law is an acceptable substitute only if parties have no opportunity to bargain. Over the years the boundary between tort and contract has shifted sharply toward tort. For example, physicians serving rural areas are often not allowed to contract with patients for a lower price in return for diminished care. And courts have allowed consumers who buy cars without air bags to recover from manufacturers for injuries that only air bags would have prevented. Sometimes courts even ignore compulsory arbitration provisions that waive the usual judicial procedures for resolving disputes. Even worse, rules have sprung up that prohibit ordinary commercial contracts. A person forbidden to sell certain products--because a government agency has determined they are too dangerous--may also be forbidden to sell his own labor--because the state has determined that the wages he would accept are too low. Contracts once freely negotiated, and subject to private suit in the event of fraud or failure to perform, are increasingly replaced by regulation. Unhappily, once government has advanced a plausible rationale for prohibiting consensual behavior in one area, its tentacles inevitably extend to other areas as well. Today's torts does not exist because corporations are oppressing individuals, or because we need federal legislation to replace state tort rules. The crisis exists because our rights have been given increasingly less respect by government. The crisis exists because we have not allowed tort to be tort, and contract to be contract. We need to restore the boundary between contract and tort.

Explaining the Variance in the Number of Tort Suits Across U.S. States and Between the United States and England

Abstract There is enormous variance across jurisdictions in the number of cases filed, even when the laws in the different jurisdictions are similar. This article is an empirical study of the variance in the number of tort cases across U.S. states (plus the District of Columbia and England), all of which have basically similar common‐law tort principles and procedures. Regression analysis reveals that explanatory variables that can be given an economic interpretation, such as income, education, and urbanization, can explain much of the variance among these jurisdictions and that cultural factors are less important. A surprising result is that, after correcting for the economic variables, England appears to be more rather than, as generally believed, much less litigious than the United States.

Stratified scarcity: redefining the standard of care.

Professor Hall is to be congratulated on his thoughtful analysis of an issue that, as he rightly suggests, “is one of the most important issues that will confront health care tort law throughout the remainder of the century.”’ He argues that malpractice law currently can accommodate considerable latitude both for a conservative streamlining of medical practices in general and for a cost-sensitivity in individual treatment decisions. And he further argues that existing tort principles, such as the locality rule, can comfortably be stretched to embrace still greater room for economics in the medical standard of care. I quite agree.Unfortunately, Hall's arguments do not go nearly far enough, for they are framed around a seriously oversimplified picture of the economic changes that are revolutionizing medicine in the United States. He envisions a fairly uniform, global set of resource constraints that generally pressure physicians to conserve on care—pressures that tort law can then encompass equally globally as it accepts more cost-efficient standards of care. However, neither the changing economics of medicine nor the resulting jurisprudential challenges are anywhere near this generalized.

Theories of recovery for des damage: Is tort liability the answer?

An estimated 1000 individual or class action products liability lawsuits have been filed against the pharmaceutical manufacturers of diethylstilbestrol (DES). The field of potential plaintiffs is estimated at 500,000-6,000,000 and there are 150-300 potential defendant manufacturers. This article addresses the question of whether the current system of tort liability dispenses fair, timely, and uniform justice both to DES claimants and manufacturers and presents a historical perspective on the basis for liability. Traditional theories of tort recovery are based on negligence, breach of warranty, and strict liability. They place the burden of proof on the claimant to specifically identify the product manufacturer and establish proximate causation. Novel theories of recovery have had to be applied in DES lawsuits, including concert of action and alternative liability. Most of these theories have been unaccepted by trial and appellate courts because of the inability to identify the manufacturer. Even if DES manufacturers were to be held liable under a theory of industry-wide or market share liability, defendants would be called upon to allocate liability among themselves. Many believe that any departure from traditional tort principles should be accomplished by the legislature, not the judiciary. There is not currently a bill before the US Congress dealing specifically with compensation for damages to DES victims. Any model toxic tort legislation should aim to eliminate the benefit inequities as between claimants and the cost inequities in delivering benefits to qualified recipients by the responsible parties. The claimant's burden of establishing fault should be eliminated in exchange for a claimant's surrender of a right to sue a third party, and a standardization of compensatory damages. The requirements of specific product identification, duration of exposure, and degree of fault would be eliminated. Jurisdictional requirements and statues of limitation must be drafted to permit recovery for previously unknown injuries. Finally, there should be an overall goal of promptness in recovery. The most equitable solution to problems with the tort system is legislation which deals with the toxic tort problem as a whole and not just on a case-by-case basis.